CIC: the fees prescribed under the Companies Act will prevail over the fees prescribed by the RTI Rules - Section 22 of the RTI Act does not come in the way of application of Section 610 of the Companies Act – no award of penalty or compensation
14 Oct, 2013ORDER
Shri Surender Kumar Sharma, hereinafter called the appellant, has filed the present appeal dated 8.9.2012 before the Commission against the respondent Office of the Registrar of Companies (ROC), NCT of Delhi & Haryana, New Delhi, for not providing satisfactory information in response to his RTI-application dated 21.4.2012. The appellant was absent whereas the respondent were represented by Shri Attam Shah, APIO
2. The appellant through his RTI application dated 21.4.2012 addressed to the CPIO, ROC, Jaipur, sought information on six queries pertaining to M/s. Sharp Business Systems (India) Ltd., ROC Delhi registered against CIN No. U74899DL2000PLC104046. The CPIO, ROC, Jaipur vide letter No. E/74A/RTI/1002 dated 18.6.2012 transferred the RTI application to the CPIO, ROC, NCT of Delhi & Haryana, New Delhi as the said company is registered with ROC, NCT of Delhi & Haryana. The CPIO, ROC, NCT of Delhi & Haryana vide letter No. RTI/2012/MISC/16 dated 24.7.2012 replied to the appellant as follows:
“Regarding information sought for at Para No. 1 and 6, it is informed that a company can carry out business in any State (within the territorial limits of the Country), other than the State where it is registered. It is also stated that there is no such provision under the Companies Act, 1956 restricting companies from carrying out business in different States/places. Regarding information sought for in para No. 2 to 4 are the contents of the documents filed by the company under the various provisions of the Companies Act, 1956 and the same being public documents are already available/accessible on the public domain i.e. Ministry’s website www.mc.gov.in. To view these documents one has to visit “MCA 21 Service Transformation” link provided on the said website, register as registered user and use the Tab “View Public Documents” under the main Tab “Get certified copies” for applying for certified copies of desired documents. In this connection attention is invited to the Section 610 of the Companies Act, 1956 whereby any person can access all the documents taken on record by the ROC on payment of the requisite fees through the website as per Rule 21A of Companies (Central Government’s) General Rules and Forms, 1956. Thus there is a built in mechanism under the provisions of Section 610 of Companies Act, 1956 read with the Companies (Central Government’s) General Rules and Forms, 1959 providing access to the public at large to the document filed by the companies pursuant to various provisions of the Companies Act, 1956 with the ROCs. Hence, the information available in the public domain cannot be treated as “Information held under the control of the Public Authority” pursuant to Section 20 of the RTI Act. Regarding information sought for in para No. 5, no complaint is appearing on the MCA Portal against the said company till date.”
3. The appellant instead of filing first appeal before the FAA, ROC NCT of Delhi & Haryana filed first appeal on 4.6.2012 before the FAA, ROC, Jaipur. The FAA, ROC, Jaipur informed the appellant that his RTI application has already been transferred to the CPIO, ROC, NCT of Delhi & Haryana.
4. In his second appeal filed before the Commission the appellant states that as per Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act, the CPIO has wrongly denied information by stating that the requisite information is available on the website of the public authority and that as per Section 7(2) of the RTI Act if the CPIO fails to give decision on the request for information within the period specified, he shall be deemed to have refused the request. The appellant requests the Commission to initiate proceedings against the CPIO u/s 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. and 20(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him. of the RTI Act and against the FAA u/s 19(8) (b) of the RTI Act for award of compensation.
5. The Hon’ble High Court of Delhi in W.P. (C)/ 11271/2009 vide its order dated 1.6.2012 in the matter of Registrar of Companies & others Vs. Dharmendra Kumar Gar, and another held as follows:
“(34) From the above, it appears that the expression ‘held by’ or ‘under the control of any public authority’, in relation to ‘information’ means that information which held by the public under its control to the exclusion of others. It cannot mean that information which the public authority has already ‘leg go’, i.e. shared generally with the citizens, and also that information, in respect of which there is a statutory mechanism evolved, (independent of the RTI Act) which obliges the public authority to share the same with the citizenry by following the prescribed procedure, and upon fulfillment of the prescribed conditions,. This is so, because in respect of such information, which the public authority is statutorily obliged to disseminate, it cannot be said that the public authority ‘holds’ or ‘controls’ the same There is no exclusivity in such holding or control. In fact, the control vests in the seeker of the information who has only to operate the statutorily prescribed mechanism to access the information. It is not this kind of information, which appears to fall within the meaning of the expression ‘right to information’, as the information in relation to which the ‘right to information’ is specifically conferred by the RTI Act is that information which ‘is held by or under the control of any ‘public authority’.
(35) The mere prescription of a higher charge in the other statutory mechanism (in this case Section 610 of the Companies Act), than that prescribed under the RTI Act does not make any difference whatsoever. The right available to any person to seek inspection/copies of documents under Section 610 of the Companies Act is governed by the Companies (Central Government’s) General Rules & Forms, 1956, which are statutory rules and prescribe the fees for inspection of documents, etc. in Rule 21A. The said rules being statutory in nature and specific in their application, do not get overridden by the rules framed under the RTI Act within regard to prescription of fee for supply of information, which is general in nature, and apply to all kinds of applications made under the RTI Act to seek information. It would also be complete waste of public funds to require the creation and maintenance of two parallel machineries by the ROC – one under Section 610 of the Companies Act and the other under the RTI Act to provide the same information to an applicant. It would lead to unnecessary and avoidable duplication of work and consequent expenditure;
(46) This principle has been applied in Mahaaraja Pratap Singh Bahadur Vs. Thakur Manmohan Dey & others, AIR 1996 SC 1931 as well. Therefore, Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act, in any event, does not come in the way of application of Section 610 of the Companies Act, 1956;
(61) Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show-cause notice u/s 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafide or unreasonable conduct, i.e. where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to fulfill their statutory duties under the RTI Act with an independent mind and with objectively. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs, Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute”.
6. Consistent with the aforementioned order of the Hon’ble High Court of Delhi dated 1.6.2012 and various decisions of the Commission, the Commission of the view that the fees prescribed under the Companies Act will prevail over the fees prescribed by the RTI Rules and Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act in any event, does not come in the way of application of Section 610 of the Companies Act, 1956. As far as penalty proceedings against the CPIO u/s 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. and award of compensation u/s 19(8)(b) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to require the public authority to compensate the complainant for any loss or other detriment suffered; is concerned, the CPIO has replied to the appellant within the time frame prescribed under the RTI Act, there is no merit on the contention of the appellant. The matter is disposed of on the part of the Commission.
(Sushma Singh)
Information Commissioner
Citation: Shri Surender Kumar Sharma v. Registrar of Companies in Case No. CIC/SS/A/2012/003268